What Is Selective Incorporation Ap Gov

The Bill of Rights, initially designed to limit the power of the federal government, has undergone a transformative journey through a process known as selective incorporation. This doctrine, rooted in the Fourteenth Amendment, fundamentally reshaped the relationship between the federal government and the states, ensuring that states cannot infringe upon the fundamental rights of its citizens. Understanding selective incorporation is crucial to grasping the evolution of civil liberties in the United States.

The Genesis of Selective Incorporation: The Bill of Rights and the Fourteenth Amendment

The Bill of Rights, comprising the first ten amendments to the Constitution, was ratified in 1791. These amendments safeguard essential rights such as freedom of speech, religion, the right to bear arms, protection against unreasonable searches and seizures, and the right to due process and a fair trial. Initially, these protections applied only to the federal government, leaving state governments free to potentially violate these rights.

The Fourteenth Amendment, ratified in 1868 in the aftermath of the Civil War, aimed to protect the rights of newly freed slaves. It includes several crucial clauses, most notably the Due Process Clause and the Equal Protection Clause. The Due Process Clause states that no state shall "deprive any person of life, liberty, or property, without due process of law." This clause became the primary vehicle through which the Supreme Court began to apply the Bill of Rights to the states.

The Road to Incorporation: Gradualism and Landmark Cases

The Supreme Court's journey towards selective incorporation was gradual and marked by significant legal battles. The Court had to grapple with the question of whether the Fourteenth Amendment's Due Process Clause meant that all the provisions of the Bill of Rights automatically applied to the states (total incorporation), or whether only some rights were fundamental enough to warrant protection against state action (selective incorporation).

• Early Resistance: Barron v. Baltimore (1833)
  • Prior to the Fourteenth Amendment, the Supreme Court, in Barron v. Baltimore, explicitly held that the Bill of Rights applied only to the federal government. John Barron, the plaintiff, argued that the city of Baltimore had damaged his wharf, violating the Fifth Amendment's Takings Clause. Chief Justice John Marshall ruled that the Bill of Rights was intended as a check solely on federal power, not on the states.
• The Slaughter-House Cases (1873)
  • In the Slaughter-House Cases, the Supreme Court narrowly interpreted the Fourteenth Amendment, weakening its initial impact. The cases involved a Louisiana law that granted a monopoly to a single slaughterhouse in New Orleans. Butchers argued that this violated their Fourteenth Amendment rights. The Court, however, held that the Fourteenth Amendment primarily protected the rights of national citizenship, not rights derived from state citizenship.
• The First Steps: Chicago, Burlington & Quincy Railroad Co. v. Chicago (1897)
  • A significant step towards incorporation occurred in Chicago, Burlington & Quincy Railroad Co. v. Chicago. The Court ruled that the Takings Clause of the Fifth Amendment (requiring just compensation for private property taken for public use) applied to the states through the Fourteenth Amendment. This marked the first time a specific provision of the Bill of Rights was incorporated against the states.
• The Doctrine Takes Shape: Gitlow v. New York (1925)
  • Gitlow v. New York was a landmark case that solidified the doctrine of selective incorporation. Benjamin Gitlow was convicted under New York's Criminal Anarchy Law for distributing a socialist manifesto. The Supreme Court upheld Gitlow's conviction but, crucially, stated that freedom of speech and the press, protected by the First Amendment, were among the fundamental personal rights and liberties protected by the Due Process Clause of the Fourteenth Amendment from impairment by the states. This case established the principle that certain rights are so fundamental that they apply to both the federal and state governments.

The Selective Incorporation Process: How Rights Are Incorporated

Selective incorporation is not an all-or-nothing process. The Supreme Court evaluates rights on a case-by-case basis, determining whether a particular right is "fundamental to the American scheme of justice" or "essential to ordered liberty." If the Court deems a right fundamental, it incorporates that right, meaning it applies to the states through the Fourteenth Amendment.

The process generally involves the following steps:

1. A case arises: A legal dispute arises where an individual claims that a state government has violated a right protected by the Bill of Rights.
2. The case is litigated: The case works its way through the state court system, and if the issue involves a federal question (i.e., a question involving the U.S. Constitution), it can be appealed to the Supreme Court.
3. The Supreme Court reviews the case: The Court decides whether the right in question is fundamental. It considers the history of the right, its importance in a free society, and whether it is essential to a fair legal system.
4. The Court issues a ruling: If the Court finds the right to be fundamental, it rules that the right is incorporated and applies to the states. This means that states cannot pass laws or take actions that violate that right.

Key Cases in Selective Incorporation: A Detailed Overview

Several landmark cases have played pivotal roles in selectively incorporating specific provisions of the Bill of Rights. These cases illustrate the Supreme Court's reasoning and the practical impact of incorporation.

• First Amendment:
  • Near v. Minnesota (1931): Incorporated freedom of the press, preventing states from engaging in prior restraint (censorship) of publications.
  • Cantwell v. Connecticut (1940): Incorporated the free exercise clause of the First Amendment, protecting individuals' right to practice their religion freely from state interference.
  • Everson v. Board of Education (1947): Incorporated the Establishment Clause, prohibiting states from establishing a religion.
• Fourth Amendment:
  • Mapp v. Ohio (1961): Incorporated the Fourth Amendment's protection against unreasonable searches and seizures, establishing the exclusionary rule at the state level (evidence obtained illegally cannot be used in court).
• Fifth Amendment:
  • Malloy v. Hogan (1964): Incorporated the Fifth Amendment's protection against self-incrimination, ensuring that individuals cannot be forced to testify against themselves in state courts.
  • Miranda v. Arizona (1966): While technically a case about federal procedure, Miranda established procedural safeguards that states must follow during arrests and interrogations to protect the Fifth Amendment right against self-incrimination.
• Sixth Amendment:
  • Gideon v. Wainwright (1963): Incorporated the Sixth Amendment's right to counsel, requiring states to provide attorneys to indigent defendants in criminal cases.
  • Pointer v. Texas (1965): Incorporated the right to confront witnesses, allowing defendants to cross-examine witnesses testifying against them in state courts.
  • Klopfer v. North Carolina (1967): Incorporated the right to a speedy trial.
• Eighth Amendment:
  • Robinson v. California (1962): Incorporated the Eighth Amendment's prohibition against cruel and unusual punishment, holding that a state law criminalizing drug addiction was unconstitutional.

Rights Not Yet Incorporated: A Shrinking List

While the vast majority of the Bill of Rights has been incorporated, a few provisions have not yet been explicitly applied to the states. These include:

• The Third Amendment: Protection against quartering soldiers in private homes.
• The Fifth Amendment: The right to indictment by a grand jury in criminal cases.
• The Seventh Amendment: The right to a jury trial in civil cases.
• The Eighth Amendment: The prohibition against excessive bail and fines.

The reasons for non-incorporation vary. Some of these rights are considered less fundamental in the modern legal system, while others are seen as less applicable to the states. However, the Supreme Court could potentially incorporate these rights in future cases.

The Impact of Selective Incorporation: A Transformed Legal Landscape

Selective incorporation has profoundly impacted the American legal landscape, leading to greater protection of individual rights and liberties at the state level.

• Enhanced Protection of Civil Liberties: By applying the Bill of Rights to the states, selective incorporation ensures that individuals are protected from state government actions that might infringe upon their fundamental rights.
• Greater Uniformity in Legal Standards: Incorporation has led to more uniform legal standards across the country, as states are now bound by the same constitutional protections as the federal government.
• Increased Litigation: The process of selective incorporation has generated significant litigation, as individuals and groups have sought to enforce their rights against state governments.
• Federal Oversight of State Actions: Selective incorporation has increased federal oversight of state actions, as the Supreme Court has the power to review state laws and practices to ensure they comply with the Bill of Rights.

Criticisms and Debates Surrounding Selective Incorporation

Despite its positive impacts, selective incorporation has faced criticism and debate from various perspectives.

• Federalism Concerns: Some critics argue that selective incorporation has eroded the principles of federalism, by giving the federal government too much power over the states. They contend that states should have the freedom to develop their own laws and policies, even if those policies differ from federal standards.
• Judicial Activism: Others criticize selective incorporation as an example of judicial activism, arguing that the Supreme Court has gone beyond its proper role in interpreting the Constitution and has instead been creating new rights.
• Originalism vs. Living Constitutionalism: Debates over selective incorporation often reflect broader disagreements about constitutional interpretation. Originalists argue that the Constitution should be interpreted according to its original meaning at the time it was ratified, while proponents of a "living Constitution" argue that the Constitution should be interpreted in light of modern values and circumstances.

The Future of Selective Incorporation: Ongoing Debates and Potential Developments

The debate over selective incorporation is ongoing, and future Supreme Court decisions could further shape the doctrine. Several potential developments could occur:

• Incorporation of Remaining Rights: The Supreme Court could potentially incorporate the few remaining provisions of the Bill of Rights that have not yet been applied to the states.
• Refinement of Existing Doctrine: The Court could refine the existing doctrine of selective incorporation, clarifying the standards for determining whether a right is fundamental.
• Challenges to Incorporated Rights: There could be challenges to previously incorporated rights, as some individuals and groups may argue that certain rights should not apply to the states.

Selective Incorporation vs. Total Incorporation: A Comparative Analysis

The debate between selective incorporation and total incorporation has been a central theme in constitutional law. Understanding the differences between these two approaches is crucial to grasping the evolution of civil liberties.

• Selective Incorporation: As discussed extensively, this approach involves incorporating rights on a case-by-case basis, based on whether the right is deemed fundamental to the American scheme of justice.
• Total Incorporation: This approach argues that the Fourteenth Amendment's Due Process Clause incorporates all of the provisions of the Bill of Rights, applying them to the states in their entirety.

Arguments for Total Incorporation:

• Simplicity and Clarity: Total incorporation would provide a clear and straightforward rule, eliminating the need for the Supreme Court to engage in a complex and subjective analysis of which rights are fundamental.
• Greater Protection of Rights: Total incorporation would ensure that all of the rights protected by the Bill of Rights apply to the states, providing a more comprehensive protection of individual liberties.
• Original Intent: Some argue that the framers of the Fourteenth Amendment intended to apply the entire Bill of Rights to the states.

Arguments Against Total Incorporation:

• Federalism Concerns: As with selective incorporation, total incorporation would further erode the principles of federalism, by giving the federal government too much power over the states.
• Historical Context: Others argue that the historical context of the Fourteenth Amendment suggests that the framers did not intend to apply the entire Bill of Rights to the states.
• Practical Concerns: Some argue that total incorporation would be impractical, as some provisions of the Bill of Rights may not be easily applied to the states.

Conclusion: The Enduring Legacy of Selective Incorporation

Selective incorporation stands as a cornerstone of modern American constitutional law. Through a gradual and deliberate process, the Supreme Court has extended the protections of the Bill of Rights to the states, safeguarding individual liberties and ensuring a more just and equitable legal system. While debates and criticisms persist, the doctrine's impact on American society is undeniable, shaping the relationship between citizens and their state governments in profound ways. As the Supreme Court continues to grapple with questions of rights and liberties, selective incorporation will undoubtedly remain a vital and evolving principle in the ongoing pursuit of justice and equality.